Criminal Implications of Trashing a Landlord’s Property
By Ben Rose
It’s every landlord’s worst nightmare – the tenant you hoped to be a secure source of revenue just trashed the place, damaging your valuable property and upending the landlord-tenant relationship. Faced with significant costs, aggravation and uncertainty, you ask, “Now what?” The specialized, highly experienced real estate attorneys of Adam Leitman Bailey, P.C. are here to guide you through the turmoil, from damages recovery to eviction. But a less understood and often overlooked are the potential criminal aspects in play. Whether you can (or should) pursue penal action is a decision rife with business, relationship and strategic implications that are best navigated with the guidance of experienced counsel such as at ALBPC. And that conversation begins with a broad understanding the basic legal framework.
A tenant’s destruction of property typically falls under two sections of Penal Law Article 145: (1) Criminal Mischief; and (2) Reckless Endangerment of Property. These sections include both felonies and their less-serious misdemeanor counterparts, carrying potential periods of incarceration and a criminal record. Penal code sections use offense levels for variations of the same type of misconduct – “degrees” – such as 4th degree (less severe) to 1st degree (most severe). Severity is generally based on property value, intent, special circumstances, or frequently, some combination of these factors. Penalties for both felony and misdemeanor charges descend alphabetically, with class A being most severe to class E, the least severe. Misdemeanors may be punished by city jail time (i.e., Rikers) of less than a year (364 days max), and fines and restitution may be part of the resolution. Felony convictions, on the other hand, carry mandatory periods of incarceration in the state prison system (i.e., Attica) for indeterminate ranges of time set by the statutory framework. For example, a first-time offender convicted of a non-violent E felony must be sentenced to a minimum term of incarceration of 1-3 years and could receive a maximum of up to 11/3-4 years. A D felony in the same circumstances would carry a minimum of 1-3 and maximum of 21/3-7 years. Unlike misdemeanors, felony sentences cannot be set for a definite amount of time.
The most likely property destruction charges in a landlord-tenant relationship are:
- PL 145.00 Criminal Mischief in the 4th Degree (A misdemeanor) – committed by intentionally damaging property regardless of value, or recklessly damaging property where the value exceeds $250;
- PL 145.05 Criminal Mischief in the 3rd Degree (E felony) – committed by intentionally damaging property where the value exceeds $250;
- PL 145.10 Criminal Mischief in the 2nd Degree (D felony) – committed by intentionally damaging property where the value exceeds $1,500; and
- PL 145.25 Reckless Endangerment of Property (B misdemeanor) – recklessly engages in conduct that creates a substantial risk of damage to property where the value exceeds $250.
A key distinction in these charges is intent. Reckless behavior occurs when the offender is aware of, and consciously disregards, a substantial and unjustifiable risk (voluntarily intoxication is not a defense) (PL 15.05(3)). Intentional conduct occurs when the offender’s conscious objective is to cause the result (PL 15.05(1)). If a tenant recklessly damages, or even just endangers, property valued over $250, he could be charged with the misdemeanors of Criminal Mischief in the 4th and/or Reckless Endangerment. If there are indicia that the tenant intentionally caused the damage, however, he could be charged with E- or D-level felony Criminal Mischief, depending on the damage amount. Intent can be very difficult to prove, especially in situations involving property damage by a bona fide resident. Prosecutors exercise wide discretion over which charges to pursue, which will include their assessment of whether they can prove the charge beyond a reasonable doubt. Therefore, recklessness is far more likely to be charged, absent compelling evidence that the damage was done on purpose.
A few examples are instructive:
- A tenant’s drunken brawl with a guest, punching holes in the walls and smashing fixtures – This is fairly solid reckless/misdemeanor territory.
- A tenant overloads the washer, which overflows and damages the floor – This type of accident would almost certainly never raise criminal implications.
- But, the same tenant knows that the washer needs repairs, and is prone to overflow, yet chooses to use the washer anyway – This could be misdemeanor recklessness.
- A hostile tenant trashes the apartment at the end of his lease, leaving a note saying, “Fix this, you $%&! Landlord!” – You are likely in felony territory.
Putting that background aside, whether to pursue criminal prosecution – even if charges are viable – is a question with numerous considerations. Is the landlord-tenant relationship truly dead, or would you salvage it if you could? Criminal charges may follow a person for the rest of their lives, and you may be required to testify before the grand jury or at trial – are you comfortable with that? Do the benefits of having police records for insurance purposes or the like outweigh any negatives? Is there a path to amicable resolution with the tenant, avoiding potentially lengthy and costly prosecution and/or civil action? After all, once a tenant is reported and possibly arrested and charged they are unlikely to be open to friendly resolution, and if charged, the prosecutor will control any resolution by plea, which may not take into account your desire for restitution. These questions and more should be discussed with counsel to accurately weigh the costs and benefits, considering your specific circumstances.
If you find yourself in this unfortunate situation, we recommend that you immediately document everything and contact counsel as soon as possible. Although you should not forego fully weighing your options and strategy beforehand, the sooner a matter is reported, the fresher the evidence. Take ample pictures and video. Get contact information and potential statements from building personnel and other possible witnesses. Does the building have CCTV? Try to obtain and preserve it. Contact your insurer to start the claim process and identify any necessary or beneficial documentation. If possible, have a professional inspect the property to assess damage that police may not appreciate and that may not be obvious to insurers. If the property damage was related to an incident that already resulted in an arrest on other grounds (domestic dispute, assault and battery, etc.), try to obtain relevant police records. Some of these steps can be taken on your own, while others will likely be more successful through counsel.
Should you ultimately decide to file a police report, you can go to the local precinct where the incident occurred in person (find your local precinct here). Or better yet, if it is a non-emergency that has already occurred, file an online report here within 30 days. (You can still report after 30 days, but not online.)
To obtain information about an existing police report, get as much information as possible at the outset. Details like arresting officer names, criminal complaint numbers, time and date, and precise location will make the process easier. Information in hand, you can request verification of the criminal complaint here. This does not retrieve the full police report, but it is free, relatively quick, and will give a summary with key details that can be used as proof for your insurer.
Getting the full police report is usually more difficult and time consuming but will give greater detail. You can make an online Freedom of Information Law (“FOIL”) request here. Unfortunately, the NYPD can be slow to provide FOIL information. If successful, the process could take 6 months or longer, so making the request as soon as possible to get the ball rolling is best. If you believe there was Body Worn Camera (“BWC”) footage of the incident that could be helpful, you can make a similar FOIL request for the recordings. Understand, however, that you may likely get pushback on such requests, since you, as the landlord, are likely not listed as a victim in the existing criminal report, and BWC FOIL requests are frequently rejected by the NYPD, requiring a successful appeal before compliance.
To summarize, there are a few clear, potential criminal charges that relate to tenant property destruction, with severity depending on the level of intent and monetary value of the damage. There are many practical and strategic considerations in taking criminal measures. To appropriately consider your options and strategy, reach out to Adam Leitman Bailey, P.C. as soon as possible for a consultation tailored to your particular circumstances. In the meantime, document, document, document . . . everything. The more specific information and clear evidence you have, the better your position and likely, ultimate results will be. Good luck. We are here if you need us.